Citation NR: 9715020
Decision Date: 04/30/97 Archive Date: 05/06/97
DOCKET NO. 95-09 007 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for a skin condition,
claimed as secondary to exposure to Agent Orange.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
L. A. Willett, Associate Counsel
INTRODUCTION
The veteran had active service from September 1958 to April
1968 and from November 1990 to July 1991.
This appeal arises from a March 1994 decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky, which denied the veteran’s claim for
entitlement to service connection for a skin condition
claimed as secondary to Agent Orange exposure.
The Board also notes that the veteran has voiced disagreement
with respect to the RO’s denial of his claim for entitlement
to service connection for fatigue under the Persian Gulf
guidelines. However, as that issue has not been fully
developed or certified for appeal to the Board, it is
referred to the RO for the appropriate action warranted.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran claims that he currently suffers from a chronic
skin condition caused by exposure to Agent Orange. He stated
that since his service in Vietnam, his arms, hands and legs
break out badly and sometimes bleed.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
evidence of a well-grounded claim for entitlement to service
connection for a skin condition, claimed as secondary to
Agent Orange exposure.
FINDINGS OF FACT
1. Sufficient relevant evidence necessary for an equitable
disposition of the present appeal has been obtained.
2. The veteran has not presented medical evidence that he
currently suffers from a diagnosed skin condition related to
his military service or Agent Orange exposure.
CONCLUSION OF LAW
The veteran has not submitted medical evidence of a well-
grounded claim for entitlement to service connection for a
skin condition, claimed as secondary to Agent Orange
exposure. 38 U.S.C.A. §§ 1110, 1113, 1116, 5107 (West 1991 &
Supp. 1996); 38 U.S.C.A. §§ 3.303, 3.307, 3.309 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In general, service connection on a direct basis may be
granted to a veteran where it is shown that a current
disability was incurred in, or aggravated by, active military
service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. The
first step in the Board’s analysis is to determine whether
the veteran has presented a well-grounded claim for service
connection under 38 U.S.C.A. § 5107(a). A well grounded
claim is established by competent evidence of the following
elements: (1) a current disability established by a medical
diagnosis (Rabideau v. Derwinski, 2 Vet.App. 141 (1992)); (2)
incurrence or aggravation of a disease or injury in service
(lay or medical evidence), and; (3) a nexus between the in-
service injury or disease and the current disability (medical
evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). Where
the determinative issue involves medical etiology, competent
medical evidence that the claim is plausible is required in
order for the claim to be well-grounded. Franzen v. Brown, 9
Vet.App. 235 (1996); Grottveit v. Brown, 5 Vet.App. 91, 93
(1993).
Under the authority granted by the Agent Orange Act of 1991,
the VA entered into an agreement with the National Academy of
Sciences (NAS) to review scientific evidence concerning the
association between exposure to certain herbicides used in
Vietnam with each disease suspected to be the result of such
exposure. 38 C.F.R. § 3.309(e). A disease listed under
Section 3.309(e) will be considered to have been incurred in
service if the requirements of 38 C.F.R. § 3.307(a)(6)(iii)
are met, even though there is no record of such disease
during service, provided that the rebuttable presumption
provisions of 38 C.F.R. § 3.307(d) are also satisfied:
Chloracne or other acneform disease consistent with
chloracne; Hodgkin’s disease; non-Hodgkin’s lymphoma;
porphyria cutanea tarda; multiple myeloma, respiratory
cancers (cancers of the lung, bronchus, larynx, or trachea),
prostate cancer, acute and subacute peripheral neuropathy,
and soft-tissue sarcoma. 38 C.F.R. § 3.309(e).
The diseases listed at 38 C.F.R. § 3.309(e) must have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne and porphyria cutanea tarda must
have become manifest to a degree of 10 percent or more within
a year, and respiratory cancers within 30 years, after the
last date on which the veteran was exposed to an herbicide
agent during active military, naval, or air service. 38
C.F.R. § 3.307(a)(6)(ii). The VA has determined that
presumptive service connection based on exposure to
herbicides used in the Republic of Vietnam is not warranted
for any other condition than those for which the VA has found
a positive association between the condition and such
exposure (see above). Notice, 61 Fed.Reg. 154 (1996).
Notwithstanding the presumptive conditions described above,
the United States Court of Appeals for the Federal Circuit
has determined that the Veterans’ Dioxin and Radiation
Exposure Compensation Standards (Radiation Compensation) Act,
Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does
not preclude a veteran from establishing service connection
for a claimed condition in relation to such exposure with
proof of actual direct causation. Combee v. Brown, 34 F.3d
1039 (Fed. Cir. 1994). However, competent medical evidence
which indicates that the claim is plausible or possible is
still required. See Franzen, Grottveit (supra).
A review of the veteran’s service medical records from his
1958-1968 periods of service shows flat feet and an exostosis
on the dorsal aspect of his left foot in May 1963. No
complications were indicated. In addition, the veteran was
treated for a rash on his right temple region in January
1965. In March 1967, the veteran was seen with a history of
a rash on his knee and sores on his right leg for the past
three to four weeks. Probable contact dermatitis was noted.
From April until June 1967, the veteran was treated for
blistering lesions on his right hand and left knee.
Diagnostic impression was tinea pedis. In July 1967, the
veteran was placed in sick bay for one day with complaints of
rash on his feet and hands with multiple areas of secondary
infection and fungus. In September 1967, the veteran was
admitted to the hospital for three days with complaints of a
rash on his right hand. He was treated and released to duty.
No diagnosis of a chronic skin condition was rendered during
this period.
The record indicates that the veteran was scheduled for a VA
evaluation for Agent Orange exposure in December 1988 and
that he twice failed to report. To date, the veteran has not
submitted any medical evidence substantiating his claim that
he has a current chronic skin condition which could be
directly or presumptively related to Agent Orange exposure.
The veteran also served in the Persian Gulf War. His service
medical records for that period show that he had a lipoma
removed from his left abdominal wall in December 1990.
Approximately two weeks later, the veteran had post-operative
aspiration of fluid at the site of the incision. No other
complications were noted and no skin condition was diagnosed
at that time. In February 1992, the veteran was afforded a
VA general medical examination. The veteran complained of a
loss of energy since his return from Saudi Arabia in July
1991. The veteran’s skin was described as clear.
Examination of his head, face, and neck was normal. No
chronic skin condition was noted at the time of the
examination.
In March 1995, the veteran was afforded another VA general
medical examination. At that time, the veteran complained of
chronic fatigue. Future scheduled surgery for the removal of
a cataract of his right eye was noted. No other complaints
were recorded. Examination of the veteran’s neck and face
revealed large sebaceous cysts on the right temple and right
corner of the forehead into the hairline. The cysts were
described as soft and spongy on palpation. No blistering or
bleeding was indicated. No other skin disorder was
diagnosed. These cysts do not appear to be the skin disorder
described by the veteran. No one has related them to service
or Agent Orange exposure and they are not a condition which
can be so related by operation of law.
A well grounded claim requires more than a mere assertion;
the claimant must submit supporting evidence. Tirpak v.
Derwinski, 2 Vet.App. 609 (1992). While the veteran is
certainly capable of providing evidence of symptomatology, a
lay person is generally not capable of opining on matters
requiring medical knowledge, such as the degree of disability
produced by the symptoms or the condition causing the
symptoms. See Robinette v. Brown, 8 Vet.App. 69, 74 (1995);
Heuer v. Brown, 7 Vet.App. 379, 384 (1995); Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992); see also Harvey v.
Brown, 6 Vet.App. 390, 393-94 (1994). Here, the veteran has
not submitted any medical opinion or other medical evidence
supporting his claim of a current skin disability related to
his military service or Agent Orange exposure. Moreover,
while the record shows that the veteran has a documented in-
service history of rash and fungal infections many years ago,
there is no medical evidence linking those incidents with any
current skin disorder. Thus, this claim may not be
considered well grounded. 38 U.S.C.A. §§ 1110, 5107;
38 C.F.R. § 3.303, 3.307, 3.309. Since the claim is not well
grounded, it must, accordingly, be denied. The doctrine of
reasonable doubt is for application only when the evidence of
a well-grounded claim has been analyzed on the merits and
found to be in relative equipoise, and consequently is not
applicable here. 38 U.S.C.A. § 5107(b).
In reaching this determination, the Board recognizes that
this issue is being disposed of in a manner that differs from
that used by the RO. The Board has, therefore, considered
whether the veteran has been given adequate notice to
respond, and if not, whether he has been prejudiced thereby.
Bernard v. Brown, 4 Vet.App. 384, 394 (1993). In light of
his failure to meet his obligation in the adjudication
process by not submitting adequate evidence and because the
outcome would be the same whether the claim was treated as
not well-grounded or adjudicated on the merits, the Board
concludes that he has not been prejudiced by this approach.
See generally Edenfield v. Brown, 8 Vet.App. 384 (1995).
The Board views its discussion as sufficient to inform the
veteran of the elements necessary to present a well-grounded
claim for entitlement to service connection for the claimed
disability. See Robinette, 8 Vet.App. 69, 77-78 (1995).
ORDER
Entitlement to service connection for a skin condition,
claimed as secondary to exposure to Agent Orange, is denied.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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